Borne arms

Gun law loopholes render control and enforcement a mirage

A few months after Jason Hamilton killed his wife and then took two military rifles from his ample collection and opened fire on the Latah County Courthouse, killing a cop, a church caretaker and then himself, Moscow Mayor Nancy Chaney floated the idea of a gun ban.

It would have only applied to city property and it was not a direct reaction to the shooting, Chaney said. The city never actually passed anything, after the Idaho attorney general suggested that cities and counties were not authorized to regulate guns.

Then, in March, the Legislature reacted even further, passing a bill reiterating that most local jurisdictions are barred from setting gun regulations that preempt or exceed those of the state, which are scant to begin with. And last month, the U.S. Supreme Court overturned a Washington, D.C., gun ban, a decision that the National Rifle Association promises will have broad implications for local gun control efforts nationwide.

Sen. Larry Craig, who sits on the NRA's national board of directors, hailed the court decision and called the Second Amendment a God-given right.

But a cascading series of loopholes in federal and state gun laws, in part engineered by Craig, means that millions of people like Jason Hamilton—people who should be barred from having guns—are either permitted to buy them, slip through the cracks of enforcement or benefit from what Chaney calls Idaho's "don't ask, don't tell" attitude about concealed weapons and where people carry them.

"When parents drop their children off at camp or summer recreation programs, they ought to have some confidence that people aren't armed in there," Chaney said.

Guns are banned in schools, jails and courthouses in Idaho. Two prior governors banned guns and long knives on the Capitol Mall in Boise by executive order, though that ban expires in October. Gov. C. L. "Butch" Otter's office is examining whether the recent Supreme Court decision affects that order.

Chaney just wanted the same confidence that the governor, legislators and school principals have that the red-faced citizens who come before her to plead for lower taxes or dog ordinances are not packing heat.

Mike Brown, a Troy attorney who helped start the Idaho Sport Shooters Alliance two years ago and wrote the preemption bill that passed the Legislature earlier this year, feels differently.

He thinks guns at schools, and in society at large, make things safer. Brown said the governor has no right to bar guns from the Statehouse.

"What gives the governor the authority to—by executive order—to make something that's otherwise legal ... to make that a crime?" Brown asked.

Brown would not say if he carries when he comes to Boise to testify at the Legislature. Nor would he specifically say when he carries a gun with him.

"You don't want people to know that you're carrying a gun," Brown said. "It makes the public hinky for one thing. And for another thing, you see cops wear photographer vests—it's known as a 'shoot me first vest'—why do you want to advertise this stuff?"

Hamilton advertised his guns (see page 13). He kept a picture of his AK-47 on his cell phone. He was very into gun safety and taught his nieces and nephews how to shoot responsibly. But Hamilton should not have been anywhere near guns, according to multiple state and federal laws.

He could have fit into four of the categories that prohibit gun purchases at federally licensed dealers: He was a drug user, had been committed to a mental institution for a 24-hour hold, had a restraining order against him and had been convicted of a misdemeanor domestic violence crime.

But state police and the Bureau of Alcohol, Tobacco and Firearms found that all of Hamilton's gun purchases were legal.

"There was not an illegal purchase with any of the guns in his possession," said Idaho State Police Lt. Charlie Spencer.

That means that no gun dealer did anything wrong in selling Hamilton his guns. But police have no idea where he got some of the guns and no record of sales on others. It is legal in Idaho to buy a gun with cash from, say, the back of a pickup truck at a construction site in Nampa.

Private sales are perhaps the biggest loophole in federal efforts to control the trade in weapons—anyone otherwise barred from going to a gun shop to buy a gun can easily find one in the newspaper, rendering federal gun laws, for all practical purposes, moot.

But there are other disturbing loopholes. Participation by states in the National Instant Criminal Background Check System database is voluntary. In the decade since the FBI started the background check system, Idaho has only uploaded two records of people who are not allowed to buy guns. An FBI spokesman said they are either test records or an attempt to show the state has done something.

So when Moscow police took Hamilton to a mental hospital—where he was quickly cleared for release—Idaho had no mechanism to judge if that type of brief commitment should be reported. Thousands of mental health commitments in Idaho and other states go unreported, meaning gun dealers have no real confidence that they are not selling weapons to people with dangerous mental illness.

In the wake of the Virginia Tech shooting, just a few months before the Jason Hamilton shooting, Congress passed a bill that encourages more states to send mental-health commitment records to the database. The number of mental-health cases in the database has tripled since then, and 35 states are now uploading records.

Idaho is not, though a nascent effort to participate has begun.

A group that includes the State Police, the Department of Health and Welfare, the courts and the Attorney General's office has met a few times to devise a method for forwarding mental-health cases to the background check database. But Health and Welfare said it was up to the courts, and the courts said it was up to the police. No one at ISP was available to speak about it.

Gun-rights advocates want their privacy, their freedom of expression and their borne arms.

Brown asks, "Which do I have to check at the door, my Fourth Amendment rights, my First Amendment rights or my Second Amendment rights?"

The Jason Hamilton shooting raises another question: What kind of culture truly believes that the answer to epidemic and deranged gun violence is more guns?